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Tagle v. Department of Homeland Security

United States District Court, D. Nevada

May 3, 2019

VICTOR TAGLE, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY, Defendant.

          ORDER AND REPORT AND RECOMMENDATION MOTION FOR INTERVENTION [ECF NO. 109]

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

         Before the Court is Plaintiff Victor Tagle's Motion for Court's Intervention. (ECF No. 109). For the reasons discussed below, Plaintiff's motion is denied. In addition, the Court recommends that Plaintiff be deemed a vexatious litigant.

         BACKGROUND

         As of May 2, 2019, Plaintiff has filed 60 cases in this District beginning in 2013.[1] 54 of the cases have been closed, though some appeals are still pending. The Court did not review the substance of each of these cases. The Court was able to confirm that three of his cases were dismissed for maliciousness or failure to state a claim. (2:15-cv-02083-RCJ-GWF, ECF No. 8; 2:15-cv-02358-MMD-PAL, ECF No. 3; 2:16-cv-00852-JAD-VCF, ECF No. 7). Subsequently, 13 of Plaintiff's cases, half of the cases Plaintiff has filed since the beginning of 2017, have been dismissed solely for failure to pay a filing fee as required under 28 U.S.C. § 1915(g). (2:17-cv-02846-JAD-NJK, ECF No. 5; 2:18-cv-00544-JAD-NJK, ECF No. 23; 2:18-cv-00778-JAD-PAL, ECF No. 5; 2:18-cv-00814-RFB-GWF, ECF No. 7; 2:18-cv-00871-FRB-GWF, ECF No. 5; 2:18-cv-00872-JAD-PAL, ECF No. 5; 2:18-cv-01031-GMN-VCF, ECF No. 7; 2:18- cv-02049-GMN-CWH, ECF No. 12; 3:17-cv-00257-RCJ-VPC, ECF No. 26; 3:17-cv-00372-RCJ-WGC, ECF No. 6; 3:17-cv-00497-RCJ-VPC, ECF No. 5; 3:17-cv-00510-MMD-WGC, ECF No. 12; 3:18-cv-00519-MMD-CBC, ECF No. 5).[2]

         Six of Plaintiff's cases remain open. (2:15-cv-02082-JCM-VCF, 2:15-cv-02506-APG-VCF, 2:16-cv-00757-JCM-PAL, 2:18-cv-00694-APG-CWH, 2:18-cv-00780-JAD-GWF, 2:18-cv-00815-GMN-CWH). Of these cases, three deal with the handling of Plaintiff's citizenship applications. (2:15-cv-02506, ECF No. 35; 2:18-cv-00694, ECF No. 1-1; 2:18-cv-00815, ECF No. 1-1).

         In the instant case, 2:15-cv-02506, Plaintiff has filed a motion for the Court's intervention. (ECF No. 109). This is Plaintiff's sixth such motion in this case. (ECF Nos. 70, 91, 93, 100, 102). The previous five motions were denied. (ECF Nos. 86, 108). The Court was able to locate two motions for intervention from his other open cases which have been denied. (2:15-cv-02082, ECF No. 43 at 2; 2:16-cv-00757, ECF No. 130 at 1-2). Plaintiff has been warned about requesting relief that has already been denied, making frivolous requests, and filing documents that waste the resources of the Court. (2:15-cv-02082, ECF No. 70 at 2; 2:15-cv-02506-APG-VCF, ECF No. 108 at 1-2; 2:16-cv-00757, ECF No. 130 at 1-2).[3]

         ANALYSIS

         As an initial matter, the Court denies Plaintiff's motion for intervention. This latest motion for intervention merely re-states allegations raised in other cases. (Compare 2:15-cv-02506-APG-VCF, ECF No. 109 with 2:18-cv-00694, ECF No. 1-1; 2:18-cv-00815, ECF No. 1-1). The motion asks for an entry of default, even though five motions for default are already pending in this case. (2:15-cv-02506-APG-VCF, ECF Nos. 95, 97, 101, 103, 105, 109). There is no basis for the Court's intervention. Plaintiff's request for default will be addressed based on his pending motions for default.

         Plaintiff's latest motion for intervention continues Plaintiff's pattern of abusing the judicial process. Therefore, the Court recommends deeming Plaintiff a vexatious litigant and limiting his future conduct in any cases he seeks to file in the future and in this case.[4]

         A district court has the “inherent power to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citing 28 U.S.C. § 165l(a)). Because a pre-filing order implicates a litigant's right of access to the courts, the court should enter such an extreme remedy “only after a cautious review of the pertinent circumstances.” Id. Prior to entering a pre-filing order, the court must give the litigant notice and an opportunity to be heard. Id. (citing De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)).

         The court must set forth an adequate record for review and make “substantive findings about the frivolous or harassing nature of the plaintiff's litigation.” Id. “An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed.'” Id. at 1059 (quoting De Long, 912 F.2d at 1147). To determine whether the litigant's conduct is frivolous or harassing, the court evaluates “both the number and content of the filings as indicia of the frivolousness of the litigant's claims.” Id. (quotation omitted).

         Finally, a pre-filing order “must be narrowly tailored to closely fit the specific vice encountered.” Id. (quotation omitted). A pre-filing order is overbroad if it prevents the litigant from filing any suit in the court, or applies to a suit against anyone when the record showed the plaintiff was litigious with respect to only one group of defendants. Id. at 1061. Whether to enter a pre-filing order against a vexatious litigant lies within the court's discretion. Id. at 1056.

         As detailed above, half of all Plaintiff's cases filed since the beginning of 2017 have been dismissed solely for failure to pay a filing fee as required under 28 U.S.C. § 1915(g). Plaintiff continues to litigate this issue with the Court, even after the Ninth Circuit Court of Appeals has stated on numerous occasions that the denials of Plaintiff's in forma pauperis applications was proper. (Compare 2:18-cv-00544, ECF No. 31 (Order by the Ninth Circuit Court of Appeals stating that the District Court properly denied the in forma pauperis application, filed on December 18, 2018) with 2:18-cv-02049, ECF No. 14 (motion arguing the Court is biased against Plaintiff, filed on February 11, 2019).

         Plaintiff has a long history of re-litigating issues with the Court, such as filing six different motions for intervention in one case. (2:15-cv-02506 ECF Nos. 70, 91, 93, 100, 102, 109). Plaintiff also has a history of filing almost identical motions (ECF Nos. 95, 97, 101, 103, 105) and cases (2:18-cv-00694, ECF No. 1-1; ...


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